APPENDIX 4(19)
Hansard's Report of Proceedings in the
House of Lords, vol 214 cols 1738-9 (11 March 1873)
SUPREME COURT OF JUDICATURE BILL [HL](NO
14)
Extract from the speech of the Lord Chancellor
on his motion that the bill be now read a 2a
. . . Of course, he did not propose that this portion
of the Bill should have retrospective action, and it would in
future be always open to retiring Lord Chancellors who were un-willing
to engage in these duties to retire upon the lower scale of remuneration.
With regard to what had fallen from his noble and learned Friend
the Master of the Rolls, he believed that some laymen, capable
of performing the duties referred to by his noble and learned
Friend could always be found in that House. There was no doubt
that if such men, for instance, as the noble Marquess who had
spoken so ably upon this very Bill (the Marquess of Salisbury)
could have been induced to submit themselves to judicial training
for the purpose of aiding in the dischage of the judicial functions
of their Lordships' House their services would have been of great
advantage. But the course of events had not led them to submit
themselves to that trainingto that preparation, and study,
and discipline in the matter of law and attention to the proceedings
of our Courts of Justice, without which the exercise, on their
part, of judicial functions could not be satisfactory;in
addition to which their Lordships had engaged themselves by a
self-imposed obligation not to take that course. The public had
adopted the same view, and whether it was right or wrong, secession
from that position was no longer possible. He then came to the
question as to whether there were, or were not, some matters which
ought to be carried into their Lordships' House by way of final
appeal. What he desired to do in the Bill was to make the Court
of Appeal generally final. It had been urged that cases involving
property and interests of great magnitude ought to form an exception;
but the effect of such an arrangement would be to prevent for
the sake of these few and exceptional cases the services of the
legal element in the House of Lords from being made available
in the Court of Appeal. It would, however, be in no way inconsistent
with the Bill if their Lordships should, in Committee, introduce
a clause giving in such cases, when decided by a Court composed
of too small a number of Judges, the right of re-hearing before
a Court more numerously constituted. With regard to the question
raised by the noble Marquess (the Marquess of Salisbury) respecting
ecclesiastical appeals, he had felt by no means certain that,
if he had proposed that ecclesiastical appeals should be submitted
to civil Courts, the proposal might not only have been regarded
by the clergy as a new and dangerous intrusion of the secular
power into the proper province of the Church; and, if so, the
odium of the proposal would have been ascribed, and justly, to
the Government. If however, his noble Friend could persuade the
House and the right rev. Bench that such a course would be wise,
he should have no objection to it, and he believed he might say
the Government would, in that case, have no objection to it. It
was entirely a question to be considered in the interests of the
Church; and, for his own part, he had never been able to understand
how a Church whose laws were the laws of the land could expect
to have the power of administering these laws, without any control
or superintendence of a civil Court. It might therefore, possibly
be found acceptable both to the clergy and laity to have a Court
of Appeal before which ecclesiastical judgments might be reviewed.
With regard, however, to Irish and Scotch appeals, there were
constitutional objections to transferring that portion of their
Lordships' jurisdiction to what might be represented as an English
Court, unless that transfer were made by the desire or with the
approval of the two countries. The Act of Union with Scotland
expressly provided that no appeals from that country should be
decided by an English Court. With that provision standing in the
Act of Union with Scotland it would have been a more dangerous
question that he should like to raise in this Bill if the Government
had proposed to transfer to the new Court of Appeal the power
of reviewing the decisions of the Scotch Courts without first
ascertaining that such a transfer would be approved by the people
of Scotland. A similar objection also applied to Ireland. It could
hardly be forgotten by their Lordships that in the last century
a sharp controversy between the English and Irish Bar arose out
of the authority assumed by the Court of Queen's Bench in England
to act as a Court of Appeal in Irish cases. That was ultimately
solved in favour of the authority of the Irish House of Lords,
and in the Act of Union it was provided that Irish appeals should
be brought to the House of Lords of the United Kingdom. If it
were now proposed to transfer Irish cases to the Court proposed
to be established the Government might inadvertently and unadvisedly
revive that controversy which was settled by the Act of Union,
and in the every-varying currents of opinion in Ireland, with
the demand for Home Rule, they might have brought a hornet's nest
about them if they had raised that question. If, however, Paliament
should now establish a Court such as may commend its judgments,
its constitution, its wisdom, and its authority to public opinion
both in Scotland and Ireland, and especially if the Court should
be established in such a manner as to admit of the introduction
of the best elements of the Scotch and Irish Judicatures, they
might, after ripe experience, look forward eventually to the further
development of that as well as of other parts of the measure.
At present it seemed better that their Lordships should begin
to do what they saw to be practicable, hoping that if the new
Court began well all further improvements would in the result
naturally follow, seeing that such improvements, once begun, had
a natural tendency to increase and develope themselves.
|